Kerala High Court
Xxxxxx vs State Of Kerala on 9 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 9th day of February 2024 / 20th Magha, 1945
CRL.M.APPL.NO.1/2023 IN CRL.A NO.1673 OF 2023
SC 1131/2022 OF FAST TRACK SPECIAL COURT, CHAVAKKAD
APPLICANT/APPELLANT/ACCUSED:
XXX
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM,PIN - 682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence passed by the trial court
against the accused dated 31.10.2023 in SC No.1131/2022 of the Fast Track
(Special) Court, Chavakkad pending disposal of the abvoe Criminal Appeal
and to secure the interest of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.P.K.VARGHESE, M.T.SAMEER, K.R.ARUN
KRISHNAN, DHANESH V.MADHAVAN, JERRY MATHEW, NAMITHA K.S., Advocates for
the petitioner and of the PUBLIC PROSECUTOR for the respondent, the court
passed the following:
P.T.O.
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2023
in
Crl.Appeal No.1673 of 2023
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Dated this the 9th day of February, 2024
ORDER
This is a petition filed under Section 389(1) of the Code
of Criminal Procedure, 1973. The appellant/petitioner seeks to
suspend the sentence by contending that there is every
possibility for allowing the appeal and to acquit him of all the
offences. He was convicted for the offence punishable under
Sections 354, 354A(1)(i) r/w Section 354A(2) and 354D(1)(i)
r/w Section 354D(2) of the Indian Penal Code, 1860 (IPC) and
under Sections 7 r/w Section 8, 9(c) r/w 10, 9(f) r/w 10, 9(k)
r/w10, 9(p) r/w 10 and 11(iv) r/w 12 of the Protection of
Children from Sexual Offences Act, 2012 (PoCSO Act). The
longest term of sentence imposed on the petitioner is 7 years
rigorous imprisonment. Lesser terms of sentences are
imposed for other offences.
2. Heard the learned counsel for the petitioner and
the learned Public Prosecutor.
Crl.M.A.No.1 of 2023 in
3. The petitioner was working as a full time menial
staff at the Government Higher Secondary School, Kadavallur.
PW3, the victim, was a student in that school. She was aged
15 years at the time of occurrence. It was in June 2022. Exact
date was not stated, but according to PW3 it was between
16.06.2022 and 28.06.2022. PW3 has mental and physical
challenges. At noon she went to the washroom. The petitioner
followed her and entered inside and bolted the room.
Thereafter, the petitioner removed her scarf and touched her
breast and stomach. There was also an allegation that the
petitioner used to follow her and contact her over phone
expressing sexual overtures.
4. The learned counsel for the petitioner pointed out
several inconsistencies in the evidence and urged that the
conviction of the petitioner is unsustainable. It is submitted
that the complaint said to have been lodged by PW3 before
the Child Life Line was not produced. While PW3 stated that
the incident occurred inside the bathroom, as per the
description in Ext.P1 scene mahazar, the place of occurrence
Crl.M.A.No.1 of 2023 in
is in the wash area. When the dimensions of the bathroom are
not stated, it can only be assumed that the petitioner, who
also is a physically challenged person, could not do the
alleged acts inside such a room. The medical evidence does
not tally the version of PW3. It is contended that in the light
of the said inconsistencies in the evidence of the prosecution,
the defence case that on account of the strict stand taken by
the petitioner in the matter of discipline, PW3 as also teachers
had enmity towards him and the case was foisted, stands
substantiated. Accordingly, the petitioner claims that he is
entitled to get the sentence suspension.
5. The learned Public Prosecutor after referring to the
observations in the judgment submitted that none of the
contentions raised by the petitioner is sustainable. Not only
PW3, but the teachers also gave evidence regarding the
incident. The sex coloured behaviour of the petitioner in
following PW3 is quite evident from the evidence of the
teachers. Handing over a slip by the petitioner containing his
phone number to PW3 has been proved. The version of PW3
Crl.M.A.No.1 of 2023 in
in court regarding the incidents is quite in consonance with
what is contained in the F.I.statement and 164 statement. In
the light of such convincing evidence, the petitioner cannot be
heard to contend that his conviction is wrong.
6. Having considered the matter in detail and the
evidence discussed by the court below, it cannot be said that
the case of the prosecution is improbable. The evidence
tendered by PW3 is supported by sufficient independent
corroboration. The contention of the learned counsel of the
petitioner as regards the place of the occurrence is also not
able to be accepted. It has come out that the area consists of
a wash area and separate toilets having door with a bolt.
Similarly each bathroom also has door with bolt. Therefore,
the version of PW3 concerning the place of occurrence cannot
be said to be inconsistent. In the circumstances, I am of the
view that the findings leading to the conviction of the
petitioner cannot be said prima facie incorrect.
7. The petitioner is a physically challenged person as
is seen from Ext.D1. He was convicted on 31.10.2023. He has
Crl.M.A.No.1 of 2023 in
been in jail since the said date. During investigation, he was
in custody from 01.07.2022 to 19.08.2022. During the period
of trial he was on bail. There is no allegation of his violating
the bail conditions. He was employed in Government service
and has no other criminal antecendets. Considering the
aforesaid aspects, I am of the view that a lenient view is liable
to be taken in the matter of suspension of sentence. While
releasing the petitioner on bail by suspending the sentence
there shall be sufficient safeguards for the protection of the
interest of the victim.
8. Accordingly, this petition is allowed and the
petitioner is granted bail on his executing a bond for
Rs.1,00,000/- (Rupees one lakh only), with two solvent
sureties for the like amount each, to the satisfaction of the
trial court, subject to the following conditions:
i) He shall deposit the entire amount of fine in the court
below within one month;
ii) He shall not enter the local limits of the panchayat where
the victim resides and studies;
iii) During the bail period, he shall not get involve in any
offence; and
Crl.M.A.No.1 of 2023 in
iv) He shall not contact, threaten or intimidate any of the
witnesses examined in the case.
In case of breach of any of the above conditions, the
prosecution shall be at liberty to apply before this Court for
cancellation of the suspension of sentence.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
09-02-2024 /True Copy/ Assistant Registrar
